exv4w3






Exhibit 4.3




REGISTRATION RIGHTS AGREEMENT




     THIS REGISTRATION RIGHTS AGREEMENT (this “Agreement”) is entered into as of October
27, 2009, by and among Grubb & Ellis Company, a Delaware corporation (the “Company”), and
the persons listed on the Schedule of Initial Holders attached hereto as Schedule A (each,
an “Initial Holder” and, collectively, the “Initial Holders”).



     THE PARTIES TO THIS AGREEMENT enter into this Agreement on the basis of the following facts,
intentions, and understandings:



     A. The Company, the Initial Holders on Schedule A attached hereto, and certain other
purchasers have entered into that certain Purchase Agreement, dated as of October 23, 2009 (the
“Accredited Investor Purchase Agreement”), and, upon the terms and subject to the
conditions of the Accredited Investor Purchase Agreement, the Company has agreed to issue and sell,
and such Initial Holders have agreed to purchase, such numbers of shares of the 12% cumulative
participating perpetual convertible preferred stock, par value $0.01 per share, of the Company,
which if necessary shall also include any Replacement Preferred Stock (as defined in the
Certificate of Designations) (the “Preferred Stock”) as set forth opposite such Initial
Holders’ respective names on Schedule A attached hereto.



     B. To induce the Initial Holders to purchase the Securities (as defined below) pursuant to the
Accredited Investor Purchase Agreement, the Company has agreed to provide the Initial Holders and
their Permitted Assigns (as defined below) with the benefit of (i) certain registration rights
under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder
(the “Securities Act”), on the terms and subject to the conditions set forth herein, and
(ii) certain preemptive rights to purchase additional Common Equity (as defined below), on the
terms and subject to the conditions set forth herein.



     NOW, THEREFORE, in consideration of the promises and the mutual covenants contained herein,
and for other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company and each of the Initial Holders hereby agree, for the benefit of (i) the
Initial Holders and (ii) any Permitted Assigns of the Initial Holders to whom the Initial Holders
may transfer the Securities or the Underlying Common Stock (as defined below) from time to time
(each of such Initial Holders and their Permitted Assigns, a “Holder” and together the
“Holders”), as follows:



     SECTION 1. Definitions. As used in this Agreement, the following terms shall have
the following meanings:



     “Accredited Investor Purchase Agreement” has the meaning set forth in the preamble of
this Agreement.



     “Affiliate” means with respect to any specified person, an “affiliate,” as defined in
Rule 144, of such person.



     “Amendment Effectiveness Deadline” has the meaning set forth in Section 2(d)
hereof.



1









 





     “Board of Directors” means either the board of directors of the Company or any
committee of the Board of Directors authorized to act for it with respect to this Agreement.



     “Business Day” means any day, except a Saturday, Sunday or legal holiday on which
banking institutions in The City of New York are authorized or obligated by law or executive order
to close.



     “Certificate of Designations” means the Certificate of the Powers, Designations,
Preferences and Rights of the Preferred Stock.



     “Common Equity” has the meaning set forth in Section 8.



     “Common Equity Sale” has the meaning set forth in Section 8.



     “Common Stock” means the common stock of the Company, $0.01 par value per share, as it
exists on the date of this Agreement and any shares of any class or classes of capital stock
resulting from any reclassification or reclassifications thereof.



     “Convertible Securities” has the meaning set forth in Section 8.



     “Deferral Notice” has the meaning set forth in Section 3(h) hereof.



     “Deferral Period” has the meaning set forth in Section 3(h) hereof.



     “Effectiveness Deadline” means the earlier of (i) the 90th calendar day
following the Issue Date (or the 135th calendar day following the Issue Date in the
event that the Shelf Registration Statement is subject to review by the SEC) and (ii) the fifth
Business Day after the date the Company is notified (orally or in writing, whichever is earlier) by
the SEC that the Shelf Registration Statement will not be “reviewed” or will not be subject to
further review; provided that if the Effectiveness Deadline falls on a Saturday, Sunday or other
day that the SEC is closed for business, the Effectiveness Deadline shall be extended to the next
Business Day on which the SEC is open for business.



     “Effectiveness Period” means the period commencing on the first date that a Shelf
Registration Statement is declared effective under the Securities Act and ending on the date that
all Securities and Underlying Common Stock have ceased to be Registrable Securities.



     “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules
and regulations promulgated thereunder.



     “Filing Deadline” has the meaning set forth in Section 2(a) hereof.



     “FINRA” means the Financial Industry Regulatory Authority, Inc.



     “Holder” has the meaning set forth in the preamble of this Agreement.



     “indemnified party” has the meaning set forth in Section 6(c).



     “indemnifying party” has the meaning set forth in Section 6(c).



 









 





     “Issue Date” means the first date of original issuance of the Securities.



     “Material Event” has the meaning set forth in Section 3(h) hereof.



     “Notice and Questionnaire” means a written notice delivered to the Company containing
substantially the information called for by the Selling Securityholder Notice and Questionnaire
attached as Exhibit A hereto.



     “Notice Holder” means, on any date, any Holder that has delivered a Notice and
Questionnaire to the Company on or prior to such date.



     “Permitted Assigns” means (i) Affiliates of the Initial Holders and (ii) entities that
share a common discretionary investment advisor with the Initial Holders.



     “Preferred Stock” has the meaning set forth in the preamble of this Agreement



     “Prospectus” means a prospectus included in a Shelf Registration Statement (including,
without limitation, an “issuer free writing prospectus,” as such term is defined in Rule 433 under
the Securities Act and a prospectus that discloses information previously omitted pursuant to Rule
430A under the Securities Act), as amended or supplemented, and all materials incorporated by
reference in such prospectus or free writing prospectus.



     “Registrable Securities” means the Securities and the Underlying Common Stock, and any
security issued with respect thereto upon any share dividend, split or similar event until, in the
case of any such security, the earliest of (i) one year from the latest date of original issuance
of the Securities, (ii) its effective registration under the Securities Act and resale in
accordance with a Shelf Registration Statement, (iii) the date on which all such securities
(including, without limitation, the Securities, the Underlying Common Stock, and any security
issued with respect thereto upon any share dividend, split or similar event) have been transferred
in accordance with Rule 144; provided that as a result of the event or circumstance described in
any of the foregoing clauses (i) through (iii), the legend with respect to transfer
restrictions required under the Certificate of Designations is removed or removable in accordance
with the terms of the Certificate of Designations or such legend, as the case may be, (iv) its
cessation of being outstanding, or (v) the date on which neither the Initial Holders nor their
Permitted Assigns hold any such securities (including, without limitation, the Securities, the
Underlying Common Stock, and any security issued with respect thereto upon any share dividend,
split or similar event).



     “Registration Default” has the meaning set forth in Section 2(e) hereof.



     “Registration Default Period” has the meaning set forth in Section 2(e)
hereof.



     “Registration Delay Payment” has the meaning set forth in Section 2(e) hereof.



     “Rule 144” means Rule 144 under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.



     “Rule 144A” means Rule 144A under the Securities Act, as such Rule may be amended from
time to time, or any similar rule or regulation hereafter adopted by the SEC.



 









 





     “SEC” means the U.S. Securities and Exchange Commission.



     “SEC Guidance” means (i) any publicly-available written or oral guidance, comments,
requirements or requests of the SEC staff and (ii) the Securities Act.



     “Securities Act” has the meaning set forth in the preamble of this Agreement.



     “Securities” means the aggregate 125,000 shares of Preferred Stock purchased by the
Initial Holders on the date hereof from the Company pursuant to the Accredited Investor Purchase
Agreement, as set forth opposite the Initial Holders’ respective names on Schedule A
attached hereto; provided that, for purposes of this definition, any such Preferred Stock that is
transferred to any person other than an Initial Holder or a Permitted Assign of an Initial Holder
shall immediately and forever cease to be a “Security” upon the consummation of such transfer.



     “Shelf Registration Statement” has the meaning set forth in Section 2(a)
hereof, including amendments to such registration statement, all exhibits and all materials
incorporated by reference in such registration statement.



     “Special Counsel” means Greenberg Traurig LLP or one such other successor counsel as
shall be specified by the Holders of a majority of the Registrable Securities. For purposes of
determining Holders of a majority of the Registrable Securities in this definition, Holders of
Securities shall be deemed to be the Holders of the number of shares of Underlying Common Stock
into which such Securities are or would be convertible as of the date the consent is requested.



     “Underlying Common Stock” means the Common Stock into which the Securities are
convertible or issued upon any such conversion, including, without limitation, any shares of Common
Stock issued upon conversion of accrued and unpaid dividends in connection with the conversion of
the Securities.



     SECTION 2. Shelf Registration. (a) The Company shall prepare and file or cause to be
prepared and filed with the SEC, as soon as practicable but in any event by the date 30 days after
the Issue Date (the “Filing Deadline”), a registration statement for an offering to be made
on a delayed or continuous basis pursuant to Rule 415 of the Securities Act registering the resale
from time to time by Holders thereof of all of the Registrable Securities (a “Shelf
Registration Statement”); provided that in the event that the SEC notifies the Company that, as
a result of the application of Rule 415, not all of the Registrable Securities may be registered
for resale as a secondary offering pursuant to a single Shelf Registration Statement on the form
used by the Company, the Company shall promptly inform each of the Holders and promptly use its
commercially reasonable best efforts to register, and have declared effective, the maximum
percentage of Registrable Securities permitted to be included on such Shelf Registration Statement
(distributed pro rata among the Holders of Registrable Securities on the basis of the number of
Registrable Securities owned by such Holders), and as soon as allowed by the SEC or SEC Guidance
provided to the Company or to registrants of securities in general, to register the additional
Registrable Securities on such additional Shelf Registration Statements as may be
required to register the resale of all of the Registrable Securities; provided, however, that
prior to reducing the number of shares of Registrable Securities included in the initial Shelf
Registration




 











 





Statement, the Company shall be obligated to use its commercially reasonable best efforts to
advocate with the SEC for the registration of all of the Registrable Securities in accordance with
the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation 612.09.
The Shelf Registration Statement shall, subject to Section 2(f), be on Form S-1 or another
appropriate form permitting registration of the Registrable Securities for resale by the Holders in
accordance with the methods of distribution elected by the Holders and set forth in the Shelf
Registration Statement; provided, however, that in no event shall such method of distribution take
the form of an underwritten offering of the Registrable Securities without the prior written
consent of the Company. The Company shall use its commercially reasonable efforts to cause a Shelf
Registration Statement to be declared effective under the Securities Act as promptly as is
practicable but in any event by the Effectiveness Deadline, and to keep a Shelf Registration
Statement continuously effective under the Securities Act until the expiration of the Effectiveness
Period. Each Holder that became a Notice Holder on or prior to the date five Business Days prior
to the date the initial Shelf Registration Statement is declared effective shall be named as a
selling securityholder in the initial Shelf Registration Statement and the related Prospectus in
such a manner as to permit such Holder to deliver or make available the Prospectus to purchasers of
Registrable Securities in accordance with applicable law. Only Registrable Securities shall be
included in a Shelf Registration Statement. The Company shall, by 9:30 a.m. Eastern time on the
first Business Day after the effective date of a Shelf Registration Statement, file a final
Prospectus with the SEC, as required by Rule 424(b).



     (b) If a Shelf Registration Statement covering resales of the Registrable Securities ceases to
be effective for any reason at any time during the Effectiveness Period (other than because all
securities registered thereunder shall have been resold pursuant thereto or shall have otherwise
ceased to be Registrable Securities), the Company shall use its commercially reasonable efforts to
obtain the prompt withdrawal of any order suspending the effectiveness thereof, and in any event
shall within 30 days of such cessation of effectiveness amend the Shelf Registration Statement in a
manner reasonably expected to obtain the withdrawal of the order suspending the effectiveness
thereof, or file an additional Shelf Registration Statement so that all Registrable Securities
outstanding as of the date of such filing, or such lesser number of Registrable Securities in the
event that the number of Securities to be registered are reduced in accordance with Section
2(a) hereof, are covered by a Shelf Registration Statement. If a new Shelf Registration
Statement is filed pursuant to this Section 2(b), the Company shall use its commercially
reasonable efforts to cause the new Shelf Registration Statement to become effective as promptly as
is practicable after such filing and to keep the new Shelf Registration Statement continuously
effective until the end of the Effectiveness Period.



     (c) The Company shall amend and supplement the Prospectus and/or amend the Shelf Registration
Statement if required by the rules, regulations or instructions applicable to the registration form
used by the Company for such Shelf Registration Statement or file a new Shelf Registration
Statement, if required by the Securities Act or as necessary and reasonably requested by any Holder
of the Registrable Securities covered by such Shelf Registration Statement to correct any material
misstatements or omissions with respect to any Holder or as necessary to name a Notice Holder as a
selling securityholder pursuant to Section 2(d) below.



 









 





     (d) Each Holder may sell Registrable Securities pursuant to a Shelf Registration Statement and
related Prospectus only in accordance with this Section 2(d) and Section 3(h)
hereof. From and after the date the initial Shelf Registration Statement is declared
effective, each Holder wishing to sell Registrable Securities pursuant to a Shelf Registration
Statement and related Prospectus shall, if not already a selling securityholder in such Shelf
Registration Statement, deliver a Notice and Questionnaire to the Company at least 10 Business Days
prior to such Holder’s intended distribution of Registrable Securities under the Shelf Registration
Statement. The Company shall, as promptly as practicable after the date a Notice and Questionnaire
is delivered hereunder, and in any event on or before the later of (x) five Business Days after
such delivery date or (y) five Business Days after the expiration of any Deferral Period in effect
when the Notice and Questionnaire is delivered or put into effect within five Business Days of such
delivery date:



          (i) if required by applicable law, file with the SEC a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law, file a supplement to the
related Prospectus or an amendment to any document incorporated therein by reference or file a new
Shelf Registration Statement or any other required document so that the Holder delivering such
Notice and Questionnaire is named as a selling securityholder in a Shelf Registration Statement and
the related Prospectus in such a manner as to permit such Holder to deliver or make available such
Prospectus to purchasers of the Registrable Securities in accordance with applicable law and, if
the Company shall file a post-effective amendment to a Shelf Registration Statement or shall file a
new Shelf Registration Statement, the Company shall use its commercially reasonable efforts to
cause such post-effective amendment or new Shelf Registration Statement to be declared effective
under the Securities Act as promptly as is practicable, but in any event by the date that is 45
days after the date such post-effective amendment or new Shelf Registration Statement is required
by this Section 2(d) to be filed (the “Amendment
Effectiveness Deadline”);
provided, however, that the Shelf Registration Statement shall include the disclosure required by
Rule 430B under the Securities Act in order to enable the Company to add selling securityholders on
to the Shelf Registration Statement pursuant to the filing of prospectus supplements; and provided,
further, if the Company is then able to name a selling securityholder to the Shelf Registration
Statement by means of either a supplement to the related prospectus or a post-effective amendment,
the Company shall file a prospectus supplement to name the Holder as a selling securityholder in
the Shelf Registration Statement;



          (ii) provide such Holder copies of any documents filed pursuant to Section 2(d)(i);
and



          (iii) notify such Holder as promptly as practicable after the effectiveness under the
Securities Act of any new Shelf Registration Statement or post-effective amendment filed pursuant
to Section 2(d)(i);



provided that if such Notice and Questionnaire is delivered during a Deferral Period, the Company
shall so inform the Holder delivering such Notice and Questionnaire and shall take the actions set
forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral
Period in accordance with Section 3(h); and provided, further, that in no event will the
Company be required to file more than one such amendment to the Shelf Registration Statement or new
Shelf Registration Statement in any calendar quarter for all such Holders. Notwithstanding anything
contained herein to the contrary, (i) the Company shall be under no obligation to name any Holder
that is not a Notice Holder as a selling securityholder in any Shelf Registration Statement
or related Prospectus and (ii) the Amendment Effectiveness Deadline shall be extended by ten
Business Days from the expiration of a Deferral Period.



 









 





     (e) The parties hereto agree that the Holders of Registrable Securities will suffer damages,
and that it would not be feasible to ascertain the extent of such damages with precision, if:



          (i) the initial Shelf Registration Statement has not been filed on or prior to the Filing
Deadline,



          (ii) a Shelf Registration Statement covering all of the Registrable Securities has not been
declared effective under the Securities Act on or prior to the Effectiveness Deadline,



          (iii) the Company has failed to perform its obligations set forth in Section 2(d)(i)
within the time period required therein,



          (iv) a post-effective amendment to a Shelf Registration Statement filed pursuant to
Section 2(d)(i) has not become effective under the Securities Act on or prior to the
Amendment Effectiveness Deadline, or



          (v) the aggregate duration of Deferral Periods in any period exceeds the number of days
permitted in respect of such period pursuant to Section 3(h) hereof.



Each event described in any of the foregoing clauses (i) through (v) is
individually referred to herein as a “Registration Default.” For purposes of this
Agreement, each Registration Default set forth above shall begin and end on the dates set forth in
the table set forth below:



	 	 	 	 	 
	Type of Registration	 	 	 	 
	Default by Clause	 	Beginning Date	 	Ending Date
	(i)

	 	Filing Deadline
	 	the date the initial
Shelf Registration
Statement is filed
	 
	 	 	 	 
	(ii)

	 	Effectiveness Deadline
	 	the date a Shelf
Registration Statement
covering all of the
Registrable Securities
becomes effective
under the Securities
Act
	 
	 	 	 	 
	(iii)

	 	the date by which the
Company is required to
perform its obligations
under Section 2(d)(i)
	 	the date the Company
performs its
obligations set forth
in Section 2(d)(i)
	 
	 	 	 	 
	(iv)

	 	the Amendment
Effectiveness Deadline
	 	the date the
applicable
post-effective
amendment to a Shelf
Registration Statement
becomes effective
under the Securities
Act






 









 






	 	 	 	 	 
	Type of Registration	 	 	 	 
	Default by Clause	 	Beginning Date	 	Ending Date
	(v)

	 	the date on which the
aggregate duration of
Deferral Periods in any
period exceeds the
number of days permitted
by Section 3(h)
	 	termination of the
Deferral Period that
caused the limit on
the aggregate duration
of Deferral Periods to
be exceeded






For purposes of this Agreement, Registration Defaults shall begin on the dates set forth in the
table above and shall continue until the ending dates set forth in the table above.



     Commencing on (and including) any date that a Registration Default has begun and ending on
(but excluding) the next date on which there are no Registration Defaults that have occurred and
are continuing (a “Registration Default Period”), the Company shall pay, as liquidated
damages and not as a penalty, to Holders of Registrable Securities in respect of each day in the
Registration Default Period, cash in an amount that shall accrue at a rate of 0.50% of the initial
liquidation preference of the Securities per month (the “Registration Delay Payment”) with
respect to any Registrable Security, from and including the date that a Registration Default begins
to but excluding the date on which all such Registration Defaults have been cured; provided that in
the case of a Registration Default Period that is in effect solely as a result of a Registration
Default of the type described in clause (iii) or (iv) of the preceding paragraph,
such Registration Delay Payment shall be paid only to the Holders (as set forth in the succeeding
paragraph) that have delivered Notices and Questionnaires that caused the Company to incur the
obligations set forth in Section 2(d), the non-performance of which is the basis of such
Registration Default. Notwithstanding the foregoing, no Registration Delay Payment shall accrue as
to any Registrable Security from and after the earlier of (x) the date such security is no longer a
Registrable Security and (y) expiration of the Effectiveness Period. The rates of accrual of the
Registration Delay Payment with respect to any period shall not exceed the rates provided for in
this paragraph notwithstanding the occurrence of multiple concurrent Registration Defaults.



     If a Holder has converted some or all of its Securities into Common Stock, the Holder will not
be entitled to receive any Registration Delay Payment with respect to such converted Securities,
but shall be entitled to any Registration Delay Payments with respect to the shares of Underlying
Common Stock for so long as such shares are Registrable Securities.



     The Registration Delay Payment shall be payable on each monthly anniversary of the date that
the applicable Registration Default began (each, a “Monthly Anniversary Date”) during the
Registration Default Period (and on the Monthly Anniversary Date next succeeding the end of the
Registration Default Period if the Registration Default Period does not end on a Monthly
Anniversary Date) to the Holders of the Registrable Securities entitled thereto pursuant to this
Agreement; provided that any Registration Delay Payment with respect to any Security or portion
thereof redeemed by the Company on a redemption date or purchased by the Company on a repurchase
date prior to the Monthly Anniversary Date, shall, in any such event, be paid



 









 





instead to the Holder who submitted such Security or portion thereof for redemption or
purchase on the applicable redemption date or repurchase date, as the case may be, on such date;
and provided, further, that, in the case of a Registration Default of the type described in
clause (iii) or (iv) of the first paragraph of this Section 2(e), such
Registration Delay Payment shall be paid only to the Holders entitled thereto by check mailed to
the address set forth in the Notice and Questionnaire delivered by such Holder. The Registration
Delay Payments pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion
of a month prior to the cure of a Registration Default. Notwithstanding the foregoing, the parties
agree that the sole damages payable for a violation of the terms of this Agreement with respect to
which additional payments or liquidated damages are expressly provided shall be such Registration
Delay Payment. Nothing shall preclude any Holder from pursuing or obtaining specific performance
or other equitable relief with respect to this Agreement.



     All of the Company’s payment obligations set forth in this Section 2(e) that have
accrued with respect to any Registrable Security at the time such security ceases to be a
Registrable Security shall survive until such time as all such payment obligations with respect to
such security have been satisfied in full (notwithstanding termination of this Agreement pursuant
to Section 8(l)).



     The parties hereto agree that the additional payments provided for in this Section
2(e) constitute a reasonable estimate of the damages that may be incurred by Holders of
Registrable Securities by reason of the failure of a Shelf Registration Statement to be filed or
declared effective or available for effecting resales of Registrable Securities in accordance with
the provisions hereof.



     (f) In the event that Form S-3 is not available for the registration of the resale of
Registrable Securities hereunder, the Company shall (i) register the resale of the Registrable
Securities on another appropriate form and (ii) undertake to register the Registrable Securities on
Form S-3 promptly after such form is available, provided that the Company shall maintain the
effectiveness of the Registration Statement then in effect until such time as a Registration
Statement on Form S-3 covering the Registrable Securities has been declared effective by the SEC.



     SECTION 3. Registration Procedures. In connection with the registration obligations
of the Company under Section 2 hereof, the Company shall:



     (a) Before filing any Shelf Registration Statement or Prospectus or any amendments or
supplements thereto with the SEC, furnish to the Initial Holders and the Special Counsel of such
offering, if any, copies of all such documents proposed to be filed at least three Business Days
prior to the filing of such Shelf Registration Statement or amendment thereto or Prospectus or
supplement thereto (other than supplements or amendments that do nothing more than name Notice
Holders and provide information with respect thereto).



     (b) Subject to Section 3(h) hereof, prepare and file with the SEC such amendments and
post-effective amendments to each Shelf Registration Statement as may be necessary to keep such
Shelf Registration Statement continuously effective during the Effectiveness Period; cause the
related Prospectus to be supplemented by any required prospectus supplement, and as so



 









 





supplemented to be filed pursuant to Rule 424 (or any similar provisions then in force) under
the Securities Act; and use its commercially reasonable efforts to comply with the provisions of
the Securities Act applicable to it with respect to the disposition of all securities covered by
such Shelf Registration Statement during the Effectiveness Period in accordance with the intended
methods of disposition by the Holders thereof set forth in such Shelf Registration Statement as so
amended or such Prospectus as so supplemented.



     (c) As promptly as practicable give notice to the Notice Holders, the Initial Holders and the
Special Counsel, (i) when any Prospectus, prospectus supplement, Shelf Registration Statement or
post-effective amendment to a Shelf Registration Statement has been filed with the SEC and, with
respect to a Shelf Registration Statement or any post-effective amendment, when the same has been
declared effective (other than supplements or amendments that do nothing more than name Notice
Holders and provide information with respect thereto), (ii) of any request, following the
effectiveness of the initial Shelf Registration Statement under the Securities Act, by the SEC or
any other federal or state governmental authority for amendments or supplements to any Shelf
Registration Statement or related Prospectus or for additional information, (iii) of the issuance
by the SEC or any other federal or state governmental authority of any stop order suspending the
effectiveness of any Shelf Registration Statement or the initiation or threatening of any
proceedings for that purpose, (iv) of the receipt by the Company of any notification with respect
to the suspension of the qualification or exemption from qualification of any of the Registrable
Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose, and (v) of the occurrence of, but not the nature of or details concerning, a Material
Event, which notice may, at the discretion of the Company (or as required pursuant to Section
3(h)) state that it constitutes a Deferral Notice, in which event the provisions of Section
3(h) shall apply; provided, however, in no event shall any such notice contain any information
which would constitute material, non-public information regarding the Company.



     (d) Use its commercially reasonable efforts to obtain the withdrawal of any order suspending
the effectiveness of a Shelf Registration Statement or the lifting of any suspension of the
qualification (or exemption from qualification) of any of the Registrable Securities for sale in
any jurisdiction in which they have been qualified for sale, in either case as promptly as
practicable, and provide prompt notice to each Notice Holder and the Initial Holders of the
withdrawal of any such order.



     (e) As promptly as practicable furnish to each Notice Holder, the Special Counsel and the
Initial Holders, upon request and without charge, at least one conformed copy of each Shelf
Registration Statement and any amendment thereto, including exhibits and all documents incorporated
or deemed to be incorporated therein by reference.



     (f) During the Effectiveness Period, deliver to each Notice Holder, the Special Counsel, if
any, and the Initial Holders, in connection with any sale of Registrable Securities pursuant to a
Shelf Registration Statement, without charge, as many copies of the Prospectus relating to such
Registrable Securities (including each preliminary prospectus) and any amendment or supplement
thereto as any such person may reasonably request; and the Company hereby consents (except during
such periods that a Deferral Notice is outstanding and has not been revoked) to the use of such
Prospectus or each amendment or supplement thereto by each such



 









 





person in connection with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto in the manner set forth therein on the terms set
forth herein.



     (g) Prior to any public offering of the Registrable Securities pursuant to a Shelf
Registration Statement, use its commercially reasonable efforts to register or qualify or cooperate
with the Notice Holders and their respective counsel in connection with the registration or
qualification (or exemption from such registration or qualification) of such Registrable Securities
for offer and sale under the securities or Blue Sky laws of such jurisdictions within the United
States as any Notice Holder reasonably requests in writing; prior to any public offering of the
Registrable Securities pursuant to a Shelf Registration Statement, use its commercially reasonable
efforts to keep each such registration or qualification (or exemption therefrom) effective during
the Effectiveness Period in connection with such Notice Holder’s offer and sale of Registrable
Securities pursuant to such registration or qualification (or exemption therefrom) and do any and
all other acts or things reasonably necessary or advisable to enable the disposition in such
jurisdictions of such Registrable Securities in the manner set forth in the Shelf Registration
Statement and the related Prospectus; provided that the Company will not be required to (i) qualify
as a foreign corporation or as a dealer in securities in any jurisdiction where it would not
otherwise be required to qualify but for this Agreement or (ii) take any action that would subject
it to general service of process in suits or to taxation in any such jurisdiction where it is not
then so subject.



     (h) Upon (A) the necessity to amend the Shelf Registration Statement or any Prospectus to
comply with the Securities Act, the Exchange Act or the respective rules and regulations
promulgated by the SEC thereunder or the issuance by the SEC of a stop order suspending the
effectiveness of a Shelf Registration Statement or the initiation of proceedings with respect to a
Shelf Registration Statement under Section 8(d) or 8(e) of the Securities Act, (B) the occurrence
of any event or the existence of any fact (a “Material
Event”) as a result of which a Shelf
Registration Statement shall contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements therein not
misleading, or any Prospectus shall contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or (C) the occurrence
or existence of any pending corporate development with respect to the Company or a public filing
with the SEC that, in the reasonable discretion of the Company, makes it appropriate to suspend the
availability of a Shelf Registration Statement and the related Prospectus:



          (i) in the case of clause (B) above, as promptly as practicable prepare and file, if
necessary pursuant to applicable law, a post-effective amendment to such Shelf Registration
Statement or a supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document that would be incorporated by reference into such
Shelf Registration Statement and Prospectus so that such Shelf Registration Statement does not
contain any untrue statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and such Prospectus does
not contain any untrue statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of the



 









 





circumstances under which they were made, not misleading, as thereafter delivered to the
purchasers of the Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Shelf Registration Statement, use its commercially reasonable efforts
to cause it to be declared effective as promptly as is practicable, and



          (ii) give notice to the Notice Holders, and the Special Counsel, if any, that the availability
of a Shelf Registration Statement is suspended (a “Deferral Notice ”); provided, however, in
no event shall any such notice contain any information which would constitute material, non-public
information regarding the Company.



     The Company will use its commercially reasonable efforts to ensure that the use of the
Prospectus may be resumed (x) in the case of clause (A) above, as promptly as is
practicable, (y) in the case of clause (B) above, as soon as, in the sole judgment of the
Company, public disclosure of such Material Event would not be prejudicial to or contrary to the
interests of the Company or, if necessary to avoid unreasonable burden or expense, as soon as
practicable thereafter and (z) in the case of clause (C) above, as soon as in the
reasonable discretion of the Company, such suspension is no longer appropriate. The Company shall
be entitled to exercise its right under this Section 3(h) to suspend the availability of a
Shelf Registration Statement or any Prospectus, without incurring or accruing any obligation to pay
additional amounts pursuant to Section 2(e), so long as the aggregate duration of any
periods during which the availability of the Shelf Registration Statement and any Prospectus is
suspended (each, a “Deferral Period ”) does not exceed 60 days in the aggregate in any
consecutive 12-month period. The Company shall promptly notify the Holders when the use of the
Prospectus may be resumed.



     (i) If reasonably requested in writing in connection with a disposition of Registrable
Securities pursuant to a Shelf Registration Statement, make reasonably available for inspection
during normal business hours by a representative for the Notice Holders of such Registrable
Securities, any broker-dealers, attorneys and accountants retained by such Notice Holders, and any
attorneys or other agents retained by a broker-dealer engaged by such Notice Holders, all relevant
financial and other records, all relevant corporate documents and other relevant information as may
be reasonably requested by such representative for the Notice Holders, or any such broker-dealers,
attorneys or accountants in connection with such disposition, in each case as is customary for
similar “due diligence” examinations; provided that such persons shall first agree in writing with
the Company that any non-public information shall be used solely for the purposes of satisfying
“due diligence” obligations under the Securities Act and exercising rights under this Agreement and
shall be kept confidential for a period of five years by such persons, unless (i) disclosure of
such information is required by court or administrative order or is necessary to respond to
inquiries of regulatory authorities, (ii) such information becomes generally available to the
public other than as a result of a disclosure or failure to safeguard by any such person or (iii)
such information becomes available to any such person from a source other than the Company and such
source is not bound by a confidentiality agreement; provided, further, that the foregoing
inspection and information gathering shall, to the greatest extent possible, be coordinated on
behalf of all the Notice Holders and the other parties entitled thereto by the Special Counsel; and
provided, further, that the Company shall not be required to provide commercially sensitive
materials to direct competitors of the Company. Any person legally compelled to disclose any such
confidential information made available for inspection shall
provide the Company with prompt prior written notice of such requirement so that the Company
may seek a protective order, confidentiality treatment or other appropriate remedy.



 









 





     (j) If requested by any Notice Holder, (i) incorporate as soon as practicable in the Shelf
Registration Statement or Prospectus, pursuant to a supplement or post-effective amendment if
necessary, such information regarding such Holder as required by the rules and regulations of the
SEC as such Holder may reasonably request to be included therein (unless the Company reasonably
objects to such inclusion and, in the opinion of counsel to the Company, such information is not
required to be so incorporated) and (ii) make all required filings of such supplement or such
post-effective amendment as soon as practicable after the Company has received notification of the
matters to be incorporated in such filing.



     (k) Comply with all applicable rules and regulations of the SEC and make generally available
to its securityholders earning statements (which need not be audited) satisfying the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) for a 12-month period commencing on the first day of the first fiscal quarter
of the Company commencing after the effective date of a Shelf Registration Statement, which
statements shall be made available no later than 45 days after the end of the 12-month period or 90
days if the 12-month period coincides with the fiscal year of the Company.



     (l) As applicable, cooperate with each Notice Holder to facilitate the timely preparation and
delivery of certificates representing Registrable Securities sold or to be sold pursuant to a Shelf
Registration Statement, which certificates shall not bear any restrictive legends, and cause such
Registrable Securities to be registered in such names as such Notice Holder may request in writing.



     (m) In connection with underwritten offerings pursuant to a Shelf Registration Statement, use
commercially reasonable efforts to obtain opinions of counsel to the Company (which counsel and
opinions, in form, scope and substance, shall be reasonably satisfactory to the Holders and Special
Counsel) addressed to each Notice Holder, covering the matters customarily covered in opinions
requested in underwritten offerings and obtain “cold comfort” letters from the independent
registered public accounting firm of the Company (and, if necessary, any other registered public
accounting firm of any subsidiary of the Company, or of any person or business acquired by the
Company for which financial statements and financial data are or are required to be included or
incorporated by reference in the Shelf Registration Statement or the related Prospectus or in the
documents incorporated or deemed to be incorporated therein) addressed to the Company and each
Notice Holder, such letters to be in customary form and covering matters of the type customarily
covered in “cold comfort” letters in connection with underwritten offerings.



     (n) Provide a CUSIP number for all Registrable Securities covered by each Shelf Registration
Statement not later than the effective date of such Shelf Registration Statement and provide the
transfer agent for the Securities and the Common Stock with printed certificates for the
Registrable Securities that are in a form eligible for deposit with The Depository Trust Company.



     (o) Cooperate and assist in any filings required to be made with FINRA.




 












 





     (p) Cause the Underlying Common Stock covered by the Shelf Registration Statement to be listed
or quoted, as the case may be, on each securities exchange or automated quotation system on which
the Common Stock is then listed or quoted.



     SECTION 4. Holder’s Obligations. (a) Each Holder agrees, by acquisition of the
Registrable Securities, that no Holder shall be entitled to sell any of such Registrable Securities
pursuant to a Shelf Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with a Notice and Questionnaire as required hereunder (including
the information required to be included in such Notice and Questionnaire) and the information set
forth in the next sentence. Each Notice Holder agrees promptly to furnish to the Company all
information required to be disclosed in order to make the information previously furnished to the
Company by such Notice Holder not misleading and any other information regarding such Notice Holder
and the distribution of such Registrable Securities as the Company may from time to time reasonably
request, including, without limitation, the number of Replacement Preferred Shares held by such
Holders. Any sale of any Registrable Securities by any Holder shall constitute a representation
and warranty by such Holder that the information relating to such Holder and its plan of
distribution is as set forth in the Prospectus made available or delivered by such Holder in
connection with such disposition, that such Prospectus does not as of the time of such sale contain
any untrue statement of a material fact relating to or provided by such Holder or its plan of
distribution and that such Prospectus does not as of the time of such sale omit to state any
material fact relating to or provided by such Holder or its plan of distribution necessary to make
the statements in such Prospectus, in the light of the circumstances under which they were made,
not misleading. Each Holder further agrees not to sell any Registrable Securities pursuant to the
Shelf Registration Statement without delivering, or, if permitted by applicable securities law,
making available, to the purchaser thereof a Prospectus in accordance with the requirements of
applicable securities laws. Each Holder further agrees that such Holder will not make any offer
relating to the Registrable Securities pursuant to the Shelf Registration Statement that would
constitute an “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) or
that would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the
Securities Act), unless it has obtained the prior written consent of the Company.



     (b) Upon receipt of any Deferral Notice, each Notice Holder agrees not to sell any Registrable
Securities pursuant to any Shelf Registration Statement until such Notice Holder’s receipt of
copies of the supplemented or amended Prospectus provided for in Section 3(h)(i), or until
it is advised in writing by the Company that the Prospectus may be used.



     SECTION 5. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance by the Company of its obligations under Sections
2 and 3 of this Agreement whether or not any Shelf Registration Statement is declared
effective. Such fees and expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (x) with respect to filings required
to be made with FINRA and the SEC and (y) of compliance with federal and state securities or Blue
Sky laws (including, without limitation, reasonable fees and disbursements of the Special Counsel
in connection with Blue Sky qualifications of the Registrable Securities under the laws of such
jurisdictions as Notice Holders of a majority of the Registrable Securities being sold pursuant to
a Shelf Registration Statement may designate), (ii) printing expenses (including, without



 









 





limitation, expenses of printing certificates for Registrable Securities in a form eligible
for deposit with The Depository Trust Company), (iii) all reasonable expenses of any persons in
preparing or assisting in preparing, word processing, printing and distributing any Shelf
Registration Statement, any Prospectus, any amendments or supplements thereto, and any securities
sales agreements and other documents relating to the performance of and compliance with this
Agreement, (iv) the fees and disbursements of counsel to the Company in connection with any Shelf
Registration Statement, (v) fees and disbursements of the registrar and transfer agent for the
Securities and Common Stock, (vi) Securities Act liability insurance obtained by the Company in its
sole discretion, (vii) the reasonable fees and disbursements of one Special Counsel (other than
fees and expenses in connection with any underwritten offerings), and (ix) the fees and
disbursements of the independent registered public accounting firm of the Company and of any other
Person or business whose financial statements are included or incorporated or deemed to be
incorporated by reference in a Shelf Registration Statement, including the expenses of any “cold
comfort” or similar letters required by or incident to such performance and compliance. In
addition, the Company shall pay the internal expenses of the Company (including, without
limitation, all salaries and expenses of officers and employees performing legal or accounting
duties), the expense of any annual audit, the fees and expenses incurred in connection with the
listing by the Company of the Registrable Securities on any securities exchange on which similar
securities of the Company are then listed and the fees and expenses of any person, including
special experts, retained by the Company. Notwithstanding the provisions of this Section 5,
each seller of Registrable Securities shall pay any broker’s commission, agency fee or
underwriter’s discount or commission in connection with the sale of its Registrable Securities
under a Shelf Registration Statement.




     SECTION 6. Indemnification and Contribution.



     (a) The Company agrees to indemnify and hold harmless each Notice Holder, each person, if any,
who controls any Notice Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, and each affiliate of any Holder within the meaning of Rule 405
under the Securities Act from and against any and all losses, claims, damages and liabilities
(including, without limitation, any legal or other expenses reasonably incurred by such Holder in
connection with defending or investigating any such action or claim), as incurred, caused by or
that are based upon or arise out of any untrue statement or alleged untrue statement of a material
fact contained in any Shelf Registration Statement or any amendment thereof, or any Prospectus (as
amended or supplemented if the Company shall have furnished any amendments or supplements thereto),
caused by any omission or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in the light of the
circumstances under which they were made, except to the extent such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged untrue statement or
omission based solely upon information relating to any Holder furnished to the Company in writing
by or on behalf of such Holder expressly for use therein; provided that the foregoing indemnity
shall not inure to the benefit of any Holder (or to the benefit of any person controlling such
Holder) from whom the person asserting such losses, claims, damages or liabilities purchased the
Registrable Securities, if a copy of the Prospectus (as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf
of such Holder to such person, if required by law so to have been delivered at or prior to the
written confirmation of the sale of the



 









 





Registrable Securities to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such losses, claims, damages or liabilities, unless such
failure is the result of noncompliance by the Company under this Agreement.




     (b) Each Holder agrees severally and not jointly to indemnify and hold harmless the Company
and the Company’s directors and officers who sign any Shelf Registration Statement and each person,
if any, who controls the Company (within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act) or any other Holder, to the same extent as the foregoing indemnity
from the Company to such Holder, but only (i) to the extent such losses, claims, damages or
liabilities are caused by any such untrue statement or omission or alleged untrue statement or
omission based solely upon information relating to such Holder furnished to the Company in writing
by or on behalf of such Holder expressly for use in such Shelf Registration Statement or Prospectus
or amendment or supplement thereto or (ii) to the extent that a Holder either fails to send or
deliver a copy of the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), but only if (A) the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims, damages or
liabilities and (B) such failure is not the result of noncompliance by the Company under this
Agreement. In no event shall the liability of any Holder hereunder be greater in amount than the
dollar amount of the net proceeds received by such Holder upon the sale of the Registrable
Securities pursuant to the Shelf Registration Statement giving rise to such indemnification
obligation.



     (c) In case any proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to Section 6(a)
or 6(b) hereof, such person (the “indemnified party”) shall promptly notify the
person against whom such indemnity may be sought (the “indemnifying party”) in writing and
the indemnifying party, upon request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable fees and
disbursements of such counsel related to such proceeding; provided that the failure of any
indemnified party to give such notice shall not relieve the indemnifying party of its obligations
or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have materially and adversely prejudiced the indemnifying
party. In any such proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified
party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel, (ii) the indemnifying party shall have failed promptly to assume the
defense of such proceeding and to employ counsel reasonably satisfactory to such indemnified party
in any such proceeding or (iii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or related proceedings in the
same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in writing by, in the case of



 









 





parties indemnified pursuant to Section 6(a), the Holders of a majority (with Holders
of Securities deemed to be the Holders, for purposes of determining such majority, of the number of
shares of Underlying Common Stock into which such Securities are or would be convertible as of the
date on which such designation is made) of the Registrable Securities covered by the Shelf
Registration Statement held by Holders that are indemnified parties pursuant to Section
6(a) and, in the case of parties indemnified pursuant to Section 6(b), the Company. The
indemnifying party shall not be liable for any settlement of any proceeding effected without its
written consent, which consent shall not be unreasonably withheld, delayed or conditioned, but if
settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or liability by reason of such
settlement or judgment. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter of such proceeding.




     (d) To the extent that the indemnification provided for in Section 6(a) or
6(b) is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative fault of the
indemnifying party or parties on the one hand and of the indemnified party or parties on the other
hand in connection with the statements or omissions that resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The relative benefits
received by any Holder shall be deemed to be equal to the value of receiving registration rights
under this Agreement for the Registrable Securities. The relative fault of the Holders on the one
hand and the Company on the other hand shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Holders or by the Company,
and the parties’ relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Holders’ respective obligations to contribute pursuant to
this Section 6(d) are several in proportion to the respective number of Registrable
Securities they have sold pursuant to a Shelf Registration Statement, and not joint.



     The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 6(d) were determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable considerations referred to in the
immediately preceding paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding this Section 6(d), no indemnifying party that is a
selling Holder shall be required to contribute any amount in excess of the amount by which the net
proceeds received by such Holder from the sale of the Registrable Securities giving rise to the
indemnification obligation exceeds the amount of any damages that such indemnifying party has
otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or
alleged



 









 





omission. No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty
of such fraudulent misrepresentation.




     (e) The remedies provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to an indemnified party at law or in
equity, hereunder, under the Accredited Investor Purchase Agreement or otherwise.



     (f) The indemnity and contribution provisions contained in this Section 6 shall remain
operative and in full force and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of any Holder, any person controlling any Holder or any
affiliate of any Holder or by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) the sale of any Registrable Securities by any Holder.



     SECTION 7. Information Requirements. The Company covenants that, if at any time
before the end of the Effectiveness Period, the Company is not subject to Section 13 or 15(d) under
the Exchange Act, it will make available to any Holder in connection with any sale thereof and any
prospective purchaser of Registrable Securities, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any Holder and it will take such further
action as any Holder may reasonably request, all to the extent required from time to time to enable
such Holder to sell Registrable Securities without registration under the Securities Act within the
limitation of the exemption provided by Rule 144A. Upon the request of any Holder, the Company
shall deliver to such Holder a written statement as to whether it has complied with such filing
requirements, unless such a statement has been included in the Company’s most recent report filed
pursuant to Section 13 or 15(d) under the Exchange Act.



     SECTION 8. Preemptive Rights. For six (6) months following the date of this
Agreement, if the Company issues for cash consideration any Common Stock or any securities
convertible into or exchangeable for, directly or indirectly, our Common Stock (“Convertible
Securities” and together with the Common Stock, the “Common Equity”) or any rights,
warrants or options to purchase any Common Equity (the issuance of any such Common Equity during
such six (6) month period, the “Common Equity Sale”), then the Holder shall also have the
right, subsequent to the consummation of the Common Equity Sale, to purchase up to an amount of
Common Equity, on the identical terms and conditions as the Common Equity was issued in the Common
Equity Sale, so as to maintain such Holder’s “as converted” pro rata ownership based solely upon
ownership of the Company’s equity represented by such Holder’s Registrable Securities prior to the
Common Equity Sale. Notwithstanding anything to the contrary set forth above, such purchase rights
shall not apply to any (i) Common Equity (other than for cash) in connection with a strategic
merger, alliance, joint venture, acquisition, consolidation, licensing or partnering agreement;
(ii) any Common Equity issued in connection with any credit facility obtained by the Company; or
(iii) Common Equity issued pursuant to an employment agreement or arrangement or an equity
compensation plan approved by the Company’s board of directors. Upon the consummation of the
Common Equity Sale giving rise to this right, the Company shall promptly give the Holder written
notice of the consummation of such Common Equity Sale describing the Common Equity, the price and
the terms and conditions upon which the Company issued the same and the Company’s calculation of
the amount of Common Equity that the Company believes such Holder has the right to purchase.



 









 





     SECTION 9. Miscellaneous.



     (a) No Conflicting Agreements. The Company is not, as of the date hereof, a party to, nor
shall it, on or after the date of this Agreement, enter into, any agreement with respect to its
securities that conflicts with the rights granted to the Holders in this Agreement. In addition,
the Company shall not grant to the holders of the Company’s securities (other than the Holders in
such capacity) the right to include any of its securities (other than the Registrable Securities)
in the Shelf Registration Statement provided for under this Agreement. The Company represents and
warrants that the rights granted to the Holders hereunder do not in any way conflict with the
rights granted to the holders of the Company’s securities under any other agreements unless such
rights have been waived.



     (b) Amendments and Waivers. The provisions of this Agreement, including the provisions of
this sentence, may not be amended, modified or supplemented, and waivers or consents to departures
from the provisions hereof may not be given, unless the Company has obtained the written consent of
Holders of a majority of the then outstanding Underlying Common Stock constituting Registrable
Securities (with Holders of Securities deemed to be the Holders, for purposes of this Section
9(b), of the number of outstanding shares of Underlying Common Stock into which such Securities
are or would be convertible as of the date on which such consent is requested). Notwithstanding
the foregoing, a waiver or consent to depart from the provisions hereof with respect to a matter
that relates exclusively to the rights of Holders whose securities are being sold pursuant to a
Shelf Registration Statement and that does not directly or indirectly affect the rights of other
Holders may be given by Holders of at least a majority of the Registrable Securities being sold by
such Holders pursuant to such Shelf Registration Statement; provided that the provisions of this
sentence may not be amended, modified or supplemented except in accordance with the provisions of
the immediately preceding sentence. Each Holder of Registrable Securities outstanding at the time
of any such amendment, modification, supplement, waiver or consent or thereafter shall be bound by
any such amendment, modification, supplement, waiver or consent effected pursuant to this
Section 9(b) whether or not any notice, writing or marking indicating such amendment,
modification, supplement, waiver or consent appears on the Registrable Securities or is delivered
to such Holder.



     (c) Notices. All notices and other communications provided for or permitted hereunder shall
be made in writing by hand delivery, by facsimile, by courier or by first class mail, return
receipt requested, and shall be deemed given (i) when made, if made by hand delivery, (ii) upon
confirmation, if made by facsimile, (iii) one Business Day after being deposited with such courier,
if made by overnight courier or (iv) on the date indicated on the notice of receipt, if made by
first class mail, to the parties as follows:


          (i) if to a Holder, at the most current address or facsimile number given by such Holder to
the Company in a Notice and Questionnaire or any amendment thereto;



 









 







          (ii) if to the Company, to:








Grubb & Ellis Company

39400 Woodward Avenue

Suite 250

Bloomfield Hills, Michigan 48304

Attention: Chairman of the Board

Facsimile No.: (248) 644-7620








with a copy to:








Zukerman Gore Brandeis & Crossman, LLP

875 Third Avenue

New York, New York 10022

Attention: Cliff Brandeis, Esq.


     Joseph E. Maloney, Esq.



Facsimile No.: (212) 223-6433


          (iii) if to the Initial Holders, to:








Wellington Management Company, LLP

75 State Street

Boston, Massachusetts 02109

Attention: Steve Hoffman, Esq.

Facsimile No.: (617) 204-7429








with a copy to:








Greenberg Traurig, LLP

One International Place

Boston, Massachusetts 02110

Attention: Bradley Jacobson, Esq.

Facsimile No.: (617) 279-8402



or to such other address as such person may have furnished to the other persons identified in this
Section 9(c) in writing in accordance herewith.




     (d) Approval of Holders. Whenever the consent or approval of Holders of a specified
percentage of Registrable Securities is required hereunder, Registrable Securities held by the
Company or its affiliates (as such term is defined in Rule 405 under the Securities Act) (other
than the Initial Holders or subsequent Holders if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities) shall not be counted
in determining whether such consent or approval was given by the Holders of such required
percentage.



     (e) Successors and Assigns. Any Permitted Assign of the Initial Holders to whom any
Registrable Securities are sold or otherwise transferred shall be deemed, for purposes of this
Agreement, to be an assignee of the Initial Holders. This Agreement shall be binding upon the




 












 




successors and assigns of each of the parties hereto and shall inure to the benefit of and be
binding upon each Holder of Registrable Securities; provided that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities in violation of the
terms of the Certificate of Designations; and provided, further, that this Agreement shall not
inure to the benefit of any person that is not a Permitted Assign of the Initial Holder. If
Permitted Assign of any Initial Holder shall acquire Registrable Securities in any manner, whether
by operation of law or otherwise, such Registrable Securities shall be held subject to all of the
terms of this Agreement, and by taking and holding such Registrable Securities, such Permitted
Assign shall be conclusively deemed to have agreed to be bound by and to perform all of the terms
and provisions of this Agreement and shall be entitled to receive the benefits hereof.




     (f) Submission to Jurisdiction, Etc. No legal proceeding may be commenced, prosecuted or
continued in any court other than the courts of the State of New York located in the City and
County of New York or in the United States District Court for the Southern District of New York,
which courts shall have jurisdiction over the adjudication of such matters, and the Company and the
Initial Holders each hereby consent to the jurisdiction of such courts and personal service with
respect thereto and hereby irrevocably and unconditionally waive any objection to the laying of
venue of any legal proceeding in such courts, and hereby further irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such legal proceeding brought in
any such court has been brought in an inconvenient forum. To the extent permitted by law, the
Company and the Initial Holders each hereby waive all right to trial by jury in any legal
proceeding (whether based upon contract, tort or otherwise) in any way arising out of or relating
to this Agreement. The Company agrees that a final judgment in any such legal proceeding brought
in any such court shall be conclusive and binding upon the Company and the Initial Holders and may
be enforced in any other courts in the jurisdiction of which the Company is or may be subject, by
suit upon such judgment.



     (g) Counterparts. This Agreement may be executed in any number of counterparts and by the
parties hereto in separate counterparts, each of which when so executed shall be deemed to be
original and all of which taken together shall constitute one and the same agreement.



     (h) Headings. The headings in this Agreement are for convenience of reference only and shall
not limit or otherwise affect the meaning hereof.



     (i) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.



     (j) Severability. If any term, provision, covenant or restriction of this Agreement is held
to be invalid, illegal, void or unenforceable, the remainder of the terms, provisions, covenants
and restrictions set forth herein shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby, and the parties hereto shall use their commercially best
efforts to find and employ an alternative means to achieve the same or substantially the same
result as that contemplated by such term, provision, covenant or restriction, it being intended
that all of the rights and privileges of the parties shall be enforceable to the fullest extent
permitted by law.



 









 





     (k) Entire Agreement. This Agreement is intended by the parties as a final expression of
their agreement and is intended to be a complete and exclusive statement of the agreement and
understanding of the parties hereto in respect of the subject matter contained herein and the
registration rights granted by the Company with respect to the Registrable Securities. Except as
provided in the Accredited Investor Purchase Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein, with respect to the
registration rights granted by the Company with respect to the Registrable Securities. This
Agreement supersedes all prior agreements and undertakings among the parties with respect to such
registration rights. No party hereto shall have any rights, duties or obligations other than those
specifically set forth in this Agreement.



     (l) Termination. This Agreement and the obligations of the parties hereunder shall terminate
upon the end of the Effectiveness Period, except for any liabilities or obligations under
Section 4, 5 or 6 hereof, any confidentiality obligations under Section
3(i) hereof, and the obligations to make payments of and provide for additional payments under
Section 2(e) hereof to the extent such damages accrue prior to the end of the Effectiveness
Period, each of which shall remain in effect in accordance with its terms.



[Remainder of Page Intentionally Left Blank]



 









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.



	 	 	 	 	 
	 	GRUBB & ELLIS COMPANY

 	 
	 
	 	By:  	/s/ Richard W. Pehlke
 	 
	 	 	Name:  	Richard W. Pehlke 	 
	 	 	Title:  	EVP & CFO 	 
	 


[Registration Rights Agreement
]




 









 





Confirmed and accepted as of

the date first above written:




Each of the accounts listed on Schedule A, individually and

Not jointly and severally,

By: Wellington Management Company, LLP,

        as investment adviser




	 	 	 	 	 
	 	 
	By:  	                        /s/ Steven M. Hoffman
 	 
	 	Name:  	Steven M. Hoffman 	 
	 	Title:  	Vice President and Counsel 	 
	 


[Registration Rights Agreement
]




 









 





SCHEDULE A



INITIAL HOLDERS




	 	 	 	 	 
	 	 	Number of	 
	Initial Holder	 	Securities	 
	WMP (Australia) Global Smaller Companies Equity Portfolio
	 	 	1,200	 
	Telstra Superannuation Scheme
	 	 	2,600	 
	JBWere Global Small Companies Pooled Fund
	 	 	4,400	 
	Goldman Sachs JBWere Small Companies Pooled Fund
	 	 	4,600	 
	Talvest Global Small Cap Fund
	 	 	400	 
	TELUS Foreign Equity Active Beta Pool
	 	 	800	 
	TELUS Foreign Equity Active Alpha Pool
	 	 	1,600	 
	The SEI U.S. Small Companies Fund
	 	 	3,600	 
	Wellington Management Portfolios (Dublin) — Global
Smaller Companies Equity Portfolio
	 	 	4,300	 
	UBS Multi Manager Access — Global Smaller Companies
	 	 	1,200	 
	Fonds voor Gemene Rekening Beroepsvervoer
	 	 	3,700	 
	Wellington Trust Company, National Association Multiple
Common Trust Funds Trust, Smaller Companies Portfolio
	 	 	800	 
	Retirement Plan for Employees of Union Carbide
Corporation and its Participating Subsidiary Companies
	 	 	1,000	 
	Seligman Global Smaller Companies Fund
	 	 	2,200	 
	Radian Group Inc.
	 	 	2,700	 
	New York State Nurses Association Pension Plan
	 	 	3,400	 
	Vantagepoint Discovery Fund
	 	 	3,500	 
	Wellington Trust Company, National Association Multiple
Common Trust Funds Trust, Emerging Companies Portfolio
	 	 	4,300	 
	SEI Institutional Managed Trust Small Cap Fund
	 	 	5,800	 
	Dow Employees’ Pension Plan
	 	 	5,900	 
	SEI Institutional Investments Trust — Small Cap Fund
	 	 	6,600	 
	Oregon Public Employees Retirement Fund
	 	 	13,100	 
	Lockheed Martin Corporation Master Retirement Trust
	 	 	13,700	 
	SEI Institutional Investments Trust — Small/Mid Cap Fund
	 	 	14,400	 
	Wellington Trust Company, National Association Multiple
Collective Investment Funds Trust, Emerging Companies
Portfolio
	 	 	19,200	 







 











 





EXHIBIT A




SELLING SECURITYHOLDER NOTICE AND QUESTIONNAIRE




     In connection with the preparation of the Shelf Registration Statement, please provide us with
the following information:



     1. Please state your or your organization’s name exactly as it should appear in the “Selling
Stockholder” section of the Shelf Registration Statement:




 







     2. Please provide:



     (a) the number of shares of 12% cumulative participating perpetual convertible preferred stock
(the “Preferred Stock”) of Grubb & Ellis Company that you or your organization will
beneficially own immediately after the Issue Date, including:




     (i) those shares of Preferred Stock purchased by you or your organization pursuant to the
Accredited Investor Purchase Agreement;



_____________________________________________; and





     (ii) those shares of Preferred Stock purchased by you or your organization through other
transactions:



_____________________________________________.




     (b) the number of shares of Replacement Preferred Stock (as defined in the Certificate of
Designations of the Preferred Stock) that you or your organization beneficially own, including:




     (i) only those shares of Replacement Preferred Stock received in
replacement of the Preferred Stock purchased by you or your organization pursuant
to the Accredited Investor Purchase Agreement:



_____________________________________________; and





     (ii) those shares of Replacement Preferred Stock purchased by you or
your organization through other transactions, excluding those shares of
Replacement Preferred Stock received in replacement of the Preferred Stock
purchased by you or your organization pursuant to the Accredited Investor
Purchase Agreement, set forth in clause (i) above:



_____________________________________________.




 









 








     (c) the number of shares of Common Stock of Grubb & Ellis Company that you or your
organization will beneficially own immediately after the Issue Date, including those shares of
Common Stock you would beneficially own if you were to convert into Common Stock those shares of
Preferred Stock or Replacement Preferred Stock purchased by you or your organization pursuant to
the Accredited Investor Purchase Agreement or received in replacement of such Preferred Stock or
any other transaction and those shares of Common Stock purchased by you or your organization
through other transactions:




 







     3. Have you or your organization had any position, office or other material relationship
within the past three years with the Company or its affiliates?



o
Yes o No




     If yes, please indicate the nature of any such relationships below:




 








 







     4. (a) Are you (i) a Member (see definition below), (ii) a Controlling (see definition below)
shareholder of a Member, (iii) a Person Associated with a Member (see definition below), or (iv) an
Underwriter or a Related Person (see definition below) with respect to the proposed offering; or
(b) do you own any shares or other securities of any Member not purchased in the open market; or
(c) have you made any outstanding subordinated loans to any Member?



Answer:
o Yes o No            If “yes,” please describe below:





 








 








 







     Member. The term “Member” means either any broker or dealer admitted to membership in the
National Association of Securities Dealers, Inc. (“NASD”). (FINRA Manual, By-laws Article I,
Definitions)



     Control. The term “Control” (including the terms “Controlling,” “Controlled by” and “under
common Control with”) means the possession, direct or indirect, of the power, either individually
or with others, to direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or otherwise. (Rule 405 under the
Securities Act of 1933, as amended)



 









 





     Person Associated with a Member. The term “Person Associated with a Member” means: (1) a
natural person who is registered or has applied for registration under the rules of the NASD; (2)
every sole proprietor, partner, officer, director, or branch manager of any Member, or any natural
person occupying a similar status or performing similar functions, or any natural person engaged in
the investment banking or securities business who is directly or indirectly controlling or
controlled by a Member, whether or not such person is registered or exempt from registration with
the NASD pursuant to its bylaws; and (3) for purposes of Rule 8210 of Financial Industry Regulatory
Authority, Inc. (“FINRA”), any other person listed in Schedule A of Form BD of a Member (FINFRA
Manual, By-laws Article I, Definitions).



     Underwriter or a Related Person. The term “Underwriter or a Related Person” means, with
respect to a proposed offering, underwriters, underwriters’ counsel, financial consultants and
advisors, finders, members of the selling or distribution group, and any and all other persons
associated with or related to any of such persons. (NASD Interpretation).